Citizen or subject?

by Francis X. Hennessy

Where is the “grant” all the lawyers have been talking about? Where is the “grant” on which the Eighteenth Amendment depends for existence? Where is the “grant” which makes the state legislatures of state citizens attorneys in fact, for any purpose, for the American citizens? Before the Constitution, in which is the Fifth Article, there was no citizen of America. And, as the exclusive ability of “conventions” to make NATIONAL Articles (like the ability of state legislatures to make Articles which are not national) “was reserved by Article V,” the state governments, as imaginary attorneys for ourselves, disappear entirely from the scene. We remain free citizens. We have not become “subjects.”

This comforting knowledge is emphasized when we find that, as the Supreme Court states its Fourth Conclusion, again the accurate statement is that the ability to make the new Article “is within the power to amend RESERVED by Article V of the Constitution.”

That is our own knowledge. We have brought from the conventions, in which we have sat with the early Americans, their knowledge that the ability of the “conventions” to make Articles of that kind, their exclusive ability to do so, was reserved to those “conventions,” the assembled citizens of America. We know that the Tenth Amendment expressly so declares. Therefore, when we go to the Supreme Court, with our contention that we still are citizens and that a revolution by government against the people, a revolution to make us “subjects,” must be repudiated by the Supreme Court which we have established to protect our human liberty against all usurpation by governments, our challenge will be in the words of Wilson, uttered in the Pennsylvania Convention where Americans first set their names to the Fifth Article:

“How comes it, sir, that these state governments dictate to their superiors—to the majesty of the people?”

CHAPTER XXVI
THE AMERICAN CITIZEN WILL REMAIN

The United States [the great political society of men which this book persistently calls America] form, for many, and for most important purposes, a single nation.... In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government, and in that character they have no other. America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects, it is competent. The people have declared that, in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. (U. S. Supreme Court, Cohens v. Virginia, 6 Wheat. 264, at p. 413 et seq.)

These words of Marshall tell every American why there is an “America,” a nation of men, in addition to a “United States,” a federation or league of political entities. The league existed before the Constitution created the nation. The league was not created by the Constitution. But the league was continued by the Constitution in which free men created the nation. In that Constitution, the league and its component members (the states) were made subordinate to the nation and its component members, who are the citizens of America.

How comes it, then, that modern leaders, for five years last past, have talked their nonsense about another government of the one American people? How comes it that they have argued and acted as if the Fifth Article constituted another government of the one American people?

It certainly would be startling for Marshall and his generation to hear the Eighteenth Amendment claim that one important purpose for which Americans chose to be one people was the purpose of enabling thirty-six legislatures of state citizens to interfere, “in all matters whatsoever,” with every individual liberty of all American citizens.

In the light of our education with the one American people who chose to be, “in many respects, and to many purposes, a nation” and to have, IN THAT CHARACTER, no government other than the government constituted by the First Article, how otherwise, than by the one word “nonsense,” can we dignify the five-year discussion as to the extent of the powers granted in the Fifth Article to other governments, the respective governments of the members of the league, to interfere with the liberties of the members of the nation, the citizens of America?